Department of Transp. v. 151 INTERSTATE RD.

777 N.E.2d 369

333 Ill. App.3d 821

267 Ill.Dec. 566

The DEPARTMENT OF TRANSPORTATION ex rel. PEOPLE of the State of Illinois, Plaintiff-Appellee, v. 151 INTERSTATE ROAD CORPORATION; Jane A. Green, as Trustee under Provisions of a Trust Agreement dated July 17, 1968, and known as the Jane A. Green Revocable Trust, as to an undivided one-half Interest, and as Trustee of the Nonexempt Marital Trust under the Edward H. Green Revocable Trust, U/A/D July 17, 1968, as to an undivided one-half interest; and Edward H. Green, Jr., as Successor Trustee under the Provisions of a Trust Agreement dated July 17, 1968, and known as the Jane A. Green Revocable Trust, as to an undivided one-half Interest, and as Successor Trustee of the Nonexempt Marital Trust under the Edward H. Green Revocable Trust U/A/D July 17, 1968, as to an undivided one-half interest, Defendants-Appellants.

No. 2-01-0870.

Appellate Court of Illinois, Second District.

May 30, 2002.

Supplemental Opinion Upon Denial of Rehearing September 20, 2002.

Robert J. Pugliese, Hugh C. Griffin, Hugh S.Balsam, Sarah H. Dearing, Lord, Bissell & Brook, Chicago, for 151 Interstate Road Corporation and Edward H. Green, Jr.

Anthony J. Casale, Civinelli & Casale, Bloomingdale, Richard A. Redmond, McBride, Baker & Coles, Chicago, for the Illinois Department of Transportation.

Scott M. Day, Rachel K. Robert, Day & Robert, P.C., Naperville, for amicus curiae Forest Preserve District of DuPage County.

Justice GROMETER delivered the opinion of the court:

Plaintiff, the Illinois Department of Transportation (IDOT), brought an action seeking to condemn portions of certain properties held by defendants, 151 Interstate Road Corporation and Jane A. Green as trustee and Edward H. Green, Jr., as successor trustee of two revocable trusts. Defendants responded by filing a traverse and motion to dismiss the condemnation complaint. Late in July 2001, following an evidentiary hearing, the circuit court of Du Page County denied defendants' motion. On August 3, 2001, the trial court entered an order vesting title with IDOT. The order was made conditional upon IDOT's deposit with the county treasurer of what the trial court deemed to be preliminary just compensation. Defendants now appeal. For the reasons that follow, we reverse and remand.

Before turning to the merits of this appeal, we must address a potential jurisdictional problem. This issue was called to our attention by defendants, and we commend them for their candor and compliance with relevant ethical standards (see 134 Ill.2d R. 3.3(a)(3)). The instant appeal is interlocutory in nature. Defendants assert that this court has jurisdiction by virtue of Supreme Court Rule 307(a)(7) (188 Ill.2d R. 307(a)(7)) and section 7-104(b) of the Eminent Domain Act (Act) (735 ILCS 5/7-104(b) (West 2000)). Section 7-104(b) specifies that the following three issues may be raised during an interlocutory appeal: (1) whether the plaintiff has the authority to exercise the right of eminent domain, (2) whether the property that is the object of the action is subject to the exercise of this right, and (3) whether the right is being properly exercised. 735 ILCS 5/7-104(b) (West 2000). Defendants note that in Southwestern Illinois Development Authority v. National City Environmental,L.L.C., 304 Ill.App.3d 542, 543-44, 238 Ill.Dec. 99, 710 N.E.2d 896 (1999), the Appellate Court, Fifth District, held that it lacked jurisdiction to consider whether a condemnor negotiated in good faith during such an interlocutory appeal. Defendants seek to raise that issue in this appeal.

We disagree with the Fifth District's holding. The statute authorizing the current appeal states that one of the issues that may be addressed is whether "such right is not being improperly exercised." 735 ILCS 5/7-104(b) (West 2000). The language of a statute must be given its plain and ordinary meaning; where the language is clear and unambiguous, we must apply the statute without resort to further aids of construction. Burger v. Lutheran General Hospital, 198 Ill.2d 21, 40, 259 Ill.Dec. 753, 759 N.E.2d 533 (2001). At issue here is the meaning of the phrase "improperly exercised." It is well established that good-faith negotiation by the condemnor is a condition precedent to the exercise of the power of condemnation. See County Board of School Trustees of Du Page County v. Boram, 26 Ill.2d 167, 170, 186 N.E.2d 275 (1962); Department of Transportation ex rel. People. v. Brownfield, 221 Ill.App.3d 565, 567,164 Ill.Dec. 1, 582 N.E.2d 209 (1991); Department of Transportation v. Walker, 80 Ill.App.3d 1039, 36 Ill.Dec. 376, 400 N.E.2d 956 (1980). It follows that the power cannot be properly exercised absent compliance with this applicable condition precedent. Hence, we conclude that whether a condemnor negotiated in good faith falls squarely within the plain language of the provision allowing the interlocutory appeal of the propriety of an exercise of the power.

In the instant case, defendants filed a traverse and motion to dismiss. The motion was denied, and the matter proceeded to a "quick-take" hearing. The trial court entered one order denying the motion and a second fixing preliminary just compensation and vesting title in plaintiff. Defendants identified both orders in their notice of appeal. In light of the above discussion, this court has jurisdiction to consider this appeal, including the issue of whether IDOT satisfied the requirement that it engage in good-faith negotiation prior to initiating this proceeding.

We further note the dearth of authority provided by IDOT in support of its position. The section in IDOT's brief titled "Points and Authorities" (see 188 Ill.2d R. 341(e)(1)) would be more elegantly, and aptly, titled simply "Points," for the section is devoid of any authorities. In fact, outside of an occasional reference to the controlling statute and an attempt to distinguish a case upon which defendants rely, the balance of the brief is similarly barren.

I. BACKGROUND

IDOT is engaged in a project to widen Lake Street in the town of Addison. In order to accomplish this project, IDOT sought to acquire fee simple interests and temporary construction easements in certain properties adjoining Lake Street. One such parcel was owned by a trust (the trust property), and another was owned by a corporation (the corporation property). Both the trust and the corporation are controlled by the Green family. The trust property and the corporation property are adjacent to each other and together cover an area of approximately three acres. The Greens also own additional property (the additional property) that bounds the two parcels but is otherwise unaffected by the proposed condemnation. The additional property, trust property, and corporation property cover about 6.67 acres. This group of properties is located on the southwest corner of Lake Street and Addison Road. About 35,000 cars pass by daily, making it a commercially viable, busy intersection.

In August 2000, IDOT contacted Mark Armstrong, a real estate appraiser, and requested that he appraise the Greens' property. Armstrong sent the Greens a registered letter informing them that he had been hired to perform the appraisal. Armstrong met with one of the Greens on the property later that month. The two again met about two months later. Armstrong completed appraisals of the trust property in October 2000 and the corporation property in December 2000. He later updated the appraisals on June 4, 2001. Armstrong concluded that the property had a value of approximately $10 per square foot.

On December 28, 2000, Mark Mathewson, an IDOT negotiator, tendered the Greens an offer of $8,000, by letter, for the interest IDOT wished to acquire in the trust property. On January 8, 2001, Mathewson sent a letter offering $90,000 compensation for the interests IDOT wanted to obtain in the corporation property. Both letters were followed by final-offer letters, mailed the day after the initial offers were sent. As required by section 7-102.1 of the Act (735 ILCS 5/7-102.1 (West 2000)), the letters informed the Greens of the amount of the proposed compensation, that IDOT was willing to continue to negotiate, and that, in the absence of an agreement, it was IDOT's intention to initiate eminent domain proceedings. The letters also acknowledged that, pursuant to the same statutory provision, IDOT could not initiate litigation for a 60-day period following the final offer being tendered.

On February 13, 2001, the Greens, by their attorney, contacted Mathewson. They informed Mathewson that they were getting an appraisal from an independent appraiser and would not be able to respond to IDOT's offer within 60 days of the date of the final-offer letters. The next day, Mathewson recommended that IDOT refer the matter to the Attorney General's office for condemnation.

On March 26, 2001, Mathewson sent the Greens a revised offer regarding the corporation property. This offer reflected a reduction in the area proposed to be taken as well as a $7,000 reduction in the proposed compensation. This letter did not contain any of the statements that section 7-102.1 requires in a final-offer letter. IDOT never sent a final-offer letter following this revision.

In the meantime, the Greens obtained an appraiser, Mary Linberger, and requested that she value the property. Linberger valued the property at $20.68 per square foot. On May 7, 2001, the Greens, by letter, communicated to IDOT the outcome of Linberger's appraisal and offered to settle the matter for $150,800. This amount represented compensation for the per-square=foot value of the property taken. It did not include compensation for the use of the temporary easements or the diminution in value as to the remaining property. The letter was sent to Anthony Casale, who was acting as IDOT's counsel in the matter. Casale advised the Greens that he had forwarded the offer to IDOT for consideration. IDOT...